Grace Azumah Vrs Godwin Logo [2022] GHADC 15 (1 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON TUESDAY, THE 1ST DAY OF NOVEMBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM PHILOMENA SACKEY AND MADAM VIDA DANQUAH AS PANEL MEMBERS SUIT NO. APPLICANT A6/335/22 GRACE AZUMAH OSU, ACCRA VS. GODWIN LOGO NORTH KANESHIE, ACCRA RESPONDENT Parties Present No Legal Representations for Parties. RULING This is a Ruling on an Application by the Applicant herein filed on the 7th of April 2022 for the following reliefs; 1. An Order by the Honourable Court to compel the Respondent to maintain the Two (2) children at Ghc800.00 a month, pay school fees and anything connected to school. 2. An Order to pay medical bills not covered by the NHIS and to register the children with the scheme and renew same when it expires. 3. An Order for the Respondent to rend a decent accommodation for the Applicant and the children. 4. An Order for the Respondent to be granted reasonable access to the children. 5. Any other Order(s) deemed fit by the Honourable Court. The basis of Applicant’s prayer as deposed to in her Affidavit is that she had a relationship with the Respondent that resulted in the birth of the Two (2) children and they all lived at Dansoman. The relationship ended when the Applicant saw the Respondent with another woman and upon confrontation the Respondent packed out of the house. The rent subsequently expired of which the Applicant moved to stay with her aunt and then sent the children to the Respondent’s mother so that she goes in search of greener pastures in her hometown. The Applicant deposed further that she returned to Accra and realized that the children were not being properly catered for because she had to provide the children with certain necessaries. Thus, in 2017, she went for her children and the Respondent has since then neglected and abandoned the children of which the Applicant has to solely cater for the children, hence the instant Application. The Respondent’s Case The Respondent filed his Affidavit in Opposition on the 24th of May 2022 admitted having a relationship with another woman but denied that he packed out of the room. He deposed further that he rented a room for the Applicant at Osu but the Applicant left the place after a year and subsequently dumped the children, who were then toddlers on him with the explanation that she has secured a job. He deposed further that the Applicant showed up some Five (5) years later to cunningly and secretly take the children away from him. He admitted he has failed to see to the upkeep of the children and indicated that it was because of a fatal accident he had which resulted in him being laid off for about Four (4) years. He therefore prayed for custody of both children who are now Thirteen (13) and Eleven (11) years old respectively. He further informed the court that he has rented accommodation for the Applicant on Two (2) different occasions but she brought in different men and he is not ready to rent a room for a third time. DETERMINATION: The major issues before the court for determination as deduced from the Affidavits filed by both parties are; 1. Whether or not the Applicant ought to be granted custody of the child with reasonable access to the Respondent. 2. Whether or not the Respondent can be compelled to provide a decent accommodation for the Applicant and the children. In making a determination on the issue, the court is guided by Section 2 (1) of Act 560 (supra) which states that ‘the best interest of the child shall be paramount in any matter concerning a child’ and Section 2 (2) also provides that ‘the best interest of the child shall be the primary consideration by any Court, person, institution or other body in any matter concerned with a child’. The onus therefore lies on the court to determine whether granting custody to the Applicant will be in the best interest of the children. In arriving at a conclusion, the court ought to conduct an investigation into the background of all parties, hence the Order for a Social Enquiry Report (SER). The Social Enquiry Report (SER) The SER as submitted by the Probation Officer, Madam Mavis Gbate on the 1st of November 2022 made certain findings and observations including the fact that the Applicant and the children live with her aunt and her family at Osu Kaajaanor in a chamber and hall. She sells fruits from Mondays to Fridays and indicated that she makes between GH¢40.00 to GH¢70.00 as profit weekly. The Respondent occupies a single room self-contain at Dansoman. He is married with Three (3) children however his wife and children live at Ga-Dangbe district where he visits his family most weekends. He is a driver and earns about Eight Hundred Cedis (Ghc800.00) monthly. The SER further gathered that the children have not seen the Respondent since the Applicant relocated them to their current place in 2017 and the Respondent has since stopped paying the children’s maintenance and school fees. The SER concluded by indicating that the Respondent is ready to pay school fees and have access to the children but he is not willing to provide them with accommodation. Analysis The first issue for determination is whether or not the Applicant ought to be granted custody of the child with reasonable access to the Respondent and the evidence on record shows that the Respondent has been out of the children’s lives since 2017 and he has failed to live up to his responsibility as a father. The Respondent however wants custody of the children because he is of the opinion that the Applicant had initially dumped the children on him when they were toddlers and now that they are a little grown up, he is more than capable of taking care of them. The Applicant however insists on having custody of the children because when the children were with the Respondent he did not take proper care of them. Section 45 (2) of Act 560 provides that ‘…a Family Tribunal shall consider the following when making an order for custody and access; a) the age of the child; b) that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents; c) the views of the child if the views have been independently given; d) that it is desirable to keep siblings together; e) the need for continuity in the care and control of the child; and f) any other matter that the Family Tribunal may consider relevant. In lieu of the above considerations, the court will have to determine which of the parents should have custody of the children. It was held in case of Asem vs. Asem [1968] GLR 1146 that ‚the court was obliged by statute in deciding a question of custody to have regard to the welfare of the infant as its first and paramount consideration. The crucial question for decision in the instant case was therefore which of the parents was better suited to be entrusted with the upbringing of the child”. Per the evidence on record, it appears the Respondent will be incapable of taking care of the children because he stays alone because his current wife and Three (3) children do not live with him. This implies therefore that should the Respondent have custody of the children, persons other than himself will be responsible for their upkeep. The court is guided by the opinion of the learned Judge in the case of Aikins vs. Aikins [1979] GLR 223 when he stated that ‘… I do not think I should give custody to a parent whose purpose is to deliver the children to another.’ The Applicant therefore appears to be in a better position to have custody of the children she has always lived with them and she has been solely responsible for their upkeep. However, as the court determines custody vis a vis the children’s best interests, the court must also consider a time arrangement that provides for the children to have some substantial and significant time with Respondent who is their biological father, so as to build a meaningful relationship with the children in accordance with her best interest. The second issue for determination is whether or not the Respondent can be compelled to provide a decent accommodation for the Applicant and the children. It must be emphasized that The Children’s Act, 1998 (Act 560) provides for Parental Duty and Responsibility and specifically in Section 6(1) provides that no parent shall deprive a child his welfare whether a) The parents of the child are married or not at the time of the child’s birth; or b) The parents of the child continue to live together or not. Section 6(2) further provides that every child has the right to life, dignity, respect, leisure, liberty, health, education and shelter from his parents. The import of the above quoted provisions is to the effect that the parents of a child must provide the child with all necessaries of life of which shelter is included irrespective of whether the parents are married or not. The Respondent, as the biological father of the children, therefore has the responsibility of providing a decent accommodation for the children. DECISION: Upon consideration of the Application, the testimony of both parties, the SER and pursuant to the provisions of The Children’s Act, 1998 (Act 560), the Court is satisfied that it will be in the best interest of the child to grant this instant Application and will in the best interest of the children make the following orders; 1. The Applicant shall have custody of the children and the Respondent shall have reasonable access during weekends by visiting the children at a time convenient to both parties but upon due communication with the Applicant and school vacations shall be shared equally. 2. The Applicant shall maintain the children with an amount of Four Hundred Ghana Cedis (Ghc400.00) and same shall be paid into court within the first week of every month with effect from November 2022. 3. Both parties shall share the cost of accommodation on a Fifty-Fifty (50-50) basis. The Applicant is to identify a decent accommodation and inform the Respondent who shall also inspect the said accommodation and be satisfied that it is affordable and conducive for the children. The Respondent shall pay his portion of the rent on or before the 31st of March, 2023. 4. The Applicant shall be responsible for the payment of the incidental school expenses whilst the Respondent shall pay for the exercise books, text books, school uniforms and school sandals of both children. 5. The Applicant shall register the children under the National Health Insurance Scheme (NHIS) and renew same when it expires whilst the Applicant shall pay for all medical expenses not covered by NHIS. SGD ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY MADAM VIDA DANQUAH PANEL MEMBER PANEL MEMBER 8